Click to learn the cool meaning of the symbol.
Here is what Richardson said:
This has been the most difficult decision of my political career.
Understandable because Democrats who don’t support the death penalty are almost always characterized as being soft on crime, and politicians who are perceived as being impotent when it comes to crime fighting lose elections.
But Richardson also said this:
Regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime. If the State is going to undertake this awesome responsibility, the system to impose this ultimate penalty must be perfect and can never be wrong.
Can never be wrong. This is why the death penalty cannot peacefully coexist with ideals of justice and liberty and civil rights. Forget the lobbying by law enforcement and corrections officers groups on one hand. Forget the now-innumerable studies showing racial and socioeconomic biases in sentencing and the economic analyses showing how expensive it is to execute one convict on the other. The bottom line is that we have a justice system that is imperfect, and if it is imperfect, it can be wrong, and if it can be wrong, it can execute innocent persons.
I understand the deep desire for revenge. I know it is often characterized as justice, but, really, capital punishment is about revenge, wanting to impart to the criminal the victim’s final state. Just because I do not support the death penalty does not make me immune to visceral reactions of wanting perpetrators of heinous crimes to die horrible deaths. Being a parent only makes the proclivity for these gut desires stronger. I often wonder if I could withstand a lengthy prison sentence for murdering any person who might torture or kill my son. (I doubt I am the only parent who runs such “what if” matrices.) I can almost guarantee I would want any person who harmed my child to die. In fact, that person could never be dead enough in my mind.
HOWEVER (!!!), part of living in a society that strives towards equality and the protection of civil rights means we have a responsbility to operate by a set of rules larger than any one of us. Lifetime imprisonment without parole serves justice. It sequesters individuals deemed beyond rehabilitation from society, but lifetime imprisonment also affords those who might be wrongly convicted opportunity to battle for release, even though such battles are extremely difficult. In theory, there is a lifetime during which convincing exculpatory evidence might exonerate the innocent. The mandatory appeals process in death penalty cases purportedly provides the same wiggle room, but the resemblance is superficial. We can glibly say a death-row inmate has a “lifetime” to plead his case, but that lifetime is artificial.
The idea that a justice system must always be open to self examination so that the innocent might not be wrongly convicted (or executed) is not new. Blackstone’s Formulation provides it is “better that ten guilty persons escape than that one innocent suffer.” The principle is related to the “innocent until proven guilty” pillar of our justice system.
Incidentally, the votes in the state legislature that sent the bill to Richardson were not particularly close (state senate: 24 yay, 18 nay; state house: 40 yay, 28 nay); though, unfortunately, they were along party lines. I know it is not popular to oppose the death penalty in the U.S. either as a Republican or (less so) as a Democrat. The courageous action by New Mexico legislative Democrats to repeal capital punishment makes me proud of my party. If these legislators are re-elected (or at least aren’t pilloried specifically for their vote), I will be especially proud of my home state.
Frankly, Didionsmommy, this is one of the two areas where I’m at odds with the party I typically vote for. I think the Blackstone formulation’s wrong. Executing an innocent versus letting a guilty fail to be destroyed strikes me as at best a wash, if not a “better ten innocents be killed than one guilty go unpunished.”
More to the point, you say “I know it is often characterized as justice, but, really, capital punishment is about revenge, wanting to impart to the criminal the victim’s final state.” I think that’s a false distinction. I believe retribution – what you dismiss as “revenge” and somehow unworthy and unjust – is the essence of what justice is.
More to the point, you talk about the possibility of error in conviction. Ok, true, a jury verdict is just the law and external recognition catching up to metaphysics of the criminal event. In the instance of the criminal act, whoever did it forfeited their privileges to life and bodily integrity and became what in 1984 they called an Unperson. The jury verdict’s a declaration “we’ve figured out who the Unperson is, and this is who they are, and here’s the Writ of Outlawry”. True, that declaration isn’t always accurate about the who, but… my inclination is to say “so what?” – especially as it applies to what comes after the determination of guilt. After all, changing the punishment does nothing to address (either correctively or preventatively) the error in determining who to punish – but it does guarantee that the right person won’t ever get punished or disposed of properly.
Way I see it, New Mexico’s done the wrong thing. New Mexico had 162 murders/non-negligent manslaughters and 1,032 rapes reported in 2007 (per the FBI’s Uniform Crime Reports). Charitably assuming serial actors at a 10-crimes-per-criminal rape, that’s 119.4 executions that should have been held in 2008. The perversion of justice that is US penal law already meant that at best a handful of them ever actually would have been eliminated; now, Richardson’s guaranteed the state will go 0-for-119 on doing the right thing (really, closer to 0-for-1,194, since that “every ten crimes = 1 criminal” bit was absurd).
Posted by Steve | March 19, 2009, 3:52 pmwell, steve, we are going to have to agree to disagree. first, the party you typically vote for supports the death penalty, though by a smaller margin than the republican party.
i also disagree that revenge and justice are the same thing. i will agree that post-enlightenment ideas of justice developed as a response to medieval or more hammurabi-esque systems, but believe it or not, the western penal system’s theoretical goal is rehabilitation, not retribution. (granted, we would be hard-pressed to find a major prison that actively focused on rehabilitation.) that said, i am not denying a prison sentence is punishment for stepping outside the lines, but punishment is not the same as revenge.
i don’t understand when you say:
i think what you are saying is that if the error is made, the error is, well, made. life imprisonment or death penalty, who cares? the person’s life is ruined. the system is not going to correct whatever institutional processes enable errors to be made. if what you say is true, why have an appeals process at all?
there are simply too many instances of innocent people being released after successful appeals (sometimes with the true perpetrator being found) and too many damage awards paid out to think the criminal justice system doesn’t have incentive to improve.
regarding the crime statistics to which you refer: first only a select group of crimes are considered capital crimes. in california, i know murder with special circumstances (in commission of a rape, for instance) and murder of a law enforcement officer are eligible offenses. i assume something similar is true for new mexico. the FBI stats don’t tell us which of the 162 murders are capital murders. in any event, are you suggesting that every murder qualifies as a capital crime? (rapes are irrelevant except as they might be related to a murder-with-special-circumstances case. they don’t qualify as capital crimes.) i also doubt that the other crimes committed by a criminal before he is caught qualify as capital crimes. in this case, so the death penalty is a moot issue. the repeal has no effect on these crimes or these criminals.
finally, the last paragraph of the wiki page on the blackstone formulation reads:
we don’t live in an totalitarian or authoritarian state. i happen to appreciate the ideal of “innocent before proven guilty” and a justice system that strives (although it does sometimes fail) to bring the guilty to justice. the idea that the society i live in might adopt the the principle that it is “better that ten innocent men suffer than one guilty man escape,” resulting in the state-sanctioned execution of innocent persons, at best, makes my skin crawl.
Posted by didionsmommy | March 19, 2009, 5:22 pmDM, reading over that comment, it was far less coherent than I like to be, and I apologize about that. I don’t blame you for not being able to understand parts of it.
Incidentally, the main reference on the Wikipedia page for Blackstone’s formulation is an illuminating, informative, and highly entertaining paper that I wholeheartedly recommend to everyone, Alexander Volokh’s n Guilty Men.
Now, a major problem with my comment was that I went off on that tangent with the New Mexico numbers from the UCR. You are correct, “only a select group of crimes are considered capital crimes” – and my disapproval of that state of affairs is why I went off on that tangent. You’re correct, the repeal law signed by Richardson is thus moot on most of what I was talking about. Although, really, it’s not entirely moot – it takes what I consider a bad situation (few crimes are capital crimes due to Supreme Court precedents regarding the 8th Amendment) and makes it what I consider worse (no crimes are capital crimes due to Supreme Court precedents regarding the 8th Amendment and New Mexico statute). Let it suffice to say that I believe currently there are far fewer capital offenses than there should be, and legislatures should be working to increase, not decrease, the number of executions in this country.
On to
I’ll try to articulate my intended meaning differently. I regard Question 1, “Is this person guilty of the criminal act?” as independent of Question 2, “What is the appropriate punishment for the criminal act?”. Question 1 has a very limited set of possible answers: there’s “yes” and then there’s “no”. Question 2 has a very wide set of possible answers: there’s house arrest, chemical castration, fines, prison time, the chain gang, the firing squad, stocks, scarlet letters, branding on the thumb, and pretty much anything you can think of as punishment. Now, the way I conceptualize wrongful execution, it’s due to getting the answer to Question 1 wrong when the right answer to Question 2 is “execute”. Getting rid of the death penalty to stop wrongful executions does nothing to correct for wrong answers to Question 1, but now has ruled out what is often the right answer to Question 2 and mandated a wrong answer… so now that I’ve explained it how I like explaining it, I see that yes, you did understand me the first time: I believe that getting rid of the death penalty does nothing to correct for the institutional processes that allow for wrongful conviction.
Beyond that, you bring up the ideal of “innocent before proven guilty”. It’s a good ideal, it’s an ideal I actually do agree with – but innocent before proven guilty doesn’t lead to innocent after proven guilty. Innocent before proven guilty, guilty after proven guilty. I don’t think the death penalty’s incompatible with fair or accurate trials and the presumption of innocence. Now, this is, I suppose, in a way similar to back when when Ames and I disagreed about there being a meaningful difference between pre-conviction and post-conviction torture. So be it.
As to rehabilitation as the theoretical goal of the Western penal system… you may be right (I admit to shaming ignorance). In that case, I disagree with the theoretical goals of the Western penal system. I do not regard rehabilitation as a worthwhile ends unto itself, nor as a worthwhile means towards what I had always understood to be the two goals of the penal system: punishment of the guilty and protection of the innocent – two goals that the death penalty serves extremely well.
Granted, while I like the presumption of innocence, I’d still only put n in the range from 1-2. Your skin may crawl with the thought of allowing the innocent to suffer in order to get to the guilty; I, on the other hand, feel discomfort with the reality that our society is not implacable in seeking out and destroying the guilty.
Posted by Steve | March 19, 2009, 9:58 pmYour skin may crawl with the thought of allowing the innocent to suffer in order to get to the guilty; I, on the other hand, feel discomfort with the reality that our society is not implacable in seeking out and destroying the guilty.
If this weren’t 1:30 AM, I’d comment at greater length, but that, I think, is the heart of the disagreement on capital punishment. It’s a question of what one of my professors calls error deflection. Criminal justice will never be perfect, and if you’d prefer to err on the side of finality & righteous retribution, you’ll be pro-death penalty; if you’d prefer to err on the side of certainty & due process, you’ll be anti-death penalty.
I’ve struggled with this to some degree personally, but I think I’ve wound up closer to anti-death penalty – this after working on a case over the summer, which I’d written a post on but never published for confidentiality reasons, on a man that Tx executed upon the thinnest showing of guilt. It’s hard to be comfortable with the death penalty after reading records like that.
Posted by ACG | March 20, 2009, 12:29 amPersonally, I feel that life in prison is a far worse punishment than execution.
If I had the choice between spending the rest of my years in a maximum security prison, or painlessly going to sleep via a lethal injection…that’s not even a choice. I’d take the needle in a heartbeat.
I truly do not understand the mindset that places death as the worst possible outcome. There are things worse than death. Far worse.
Posted by Donovan | March 20, 2009, 6:13 am